It is not easy to sue a state government. Generally, a state is immune from lawsuits. This is called “sovereign immunity,” and it prevents you from being able to bring a lawsuit even when a state injures you. However, there are some exceptions to a state’s sovereign immunity. For example, the state might allow people to sue for personal injuries caused by the state.[1] Also, you can sue state employees for violations of your federal constitutional rights. In order to sue a state government correctly, you should meet with an attorney who can advise you about the specific process.

Steps

Part 1

Building Your Case to Sue

1

Write down your memories of the incident. In order to successfully bring a lawsuit, you need evidence. In court, you will need to prove that someone acting on behalf of the state injured you. For example, a state employee may have discriminated against you because of your race. Or a state agency might not have maintained the safety of one of their buildings, thus injuring you.

As soon as possible, sit down and write down your memories of the incident. Document who said what, and what you did or said in return.[2]

If you were injured because you fell in a government building, then describe the building’s layout and where the hazard was located. Note whether or not any signs directed you to watch your step or avoid areas of the building. Take photographs of the area where you were injured, if possible.

2

Gather other evidence. There will probably be other evidence you can gather. For example, if you were physically injured, then you could get medical records or police reports. You can also get other witness testimony. Often, police reports will contain the names of witnesses.[3]

If anyone witnessed the incident, you can ask them to write out a witness statement.

Hold onto communications with state government employees. If you think that you have been discriminated against, then any communication might be helpful. The employee might have slipped up and said something which shows bias.

3

Meet with a lawyer. Before suing, you should schedule a consultation with a qualified attorney who can advise you about your rights. You can’t sue the state for any injury. In fact, states usually can’t be sued. Only a qualified lawyer can advise you whether you meet one of the exceptions.

To find a lawyer, you should contact your state or local bar association and ask for a referral.[4] Once you get the name, call and schedule a half hour consultation.

Take all of your evidence to the consultation. The lawyer will need to understand your situation fully in order to advise you properly.

4

Avoid delay. State governments set strict time limits for bringing lawsuits. Typically, you get less time to sue a government than you would get to sue your neighbor. Accordingly, you should contact a lawyer as soon as possible and begin the lawsuit process.[5]

Part 2

Filing a Claim for a Personal Injury

1

Draft a Notice of Claim. Before you can sue a state government for a personal injury, you need to send the government notice of the claim. Some states will have forms you can fill out. To check, search “your state” and “notice of claim lawsuit” in your favorite web browser. Generally, you will need to provide the following information:[6]

The name and address of the person bringing the legal claim. If a minor was injured, then state the child’s name and address and the name and address of a parent or guardian.

The address where you want the state to send notices. Usually, you will pick your home address.

The date, place, and circumstances of the accident. There is no need to be very detailed here. You can delve into greater detail later, if you file a lawsuit.

Information about your injury. Describe your injuries in a general manner. For example, if you broke your leg, then write “Broken left leg.” Also be sure to mention any lost income and any damaged property.

The name of the public employee who hurt you. State the name if you know it. If you don’t, then simply respond, “Not presently known.”

How much you want in compensation. You should set the number high. For example, if you suffered $5,000 in injuries, you should ask for at least $25,000. This number can be the starting point for negotiations.

The date and your signature at the bottom of the letter.

2

Mail the Notice of Claim to the correct address. The correct address will depend on your state. In some states, you must send the Notice of Claim to a centralized office. For example, Florida requires that you mail all forms to the Florida Department of Financial Services. In other states, you send the notice to every state agency or employee who harmed you.[7]

Always mail your notice certified mail, return receipt requested. The receipt will serve as proof that the notice was received.

3

Wait to hear back from the government. The government might contact you if you failed to include required information in your Notice of Claim. You should quickly provide any missing information so that you have submitted a complete, accurate claim before the deadline.[8]

4

Receive the government’s decision. After receiving your Notice of Claim, the government will consider whether to grant it or deny it. The state usually has only a limited amount of time to either grant or deny a claim—usually 30 to 180 days. Typically, governments deny claims. You should receive a notice in the mail.[9]

Don’t be worried about a denial. Often, the state denies a claim but then tries to negotiate with you. The denial is merely a formality. After your denial, you can file your lawsuit or negotiate with the state.

Sometimes you might not hear anything at all from the state. In this situation, you should wait until the state’s deadline for granting or denying the claim passes. Then you should file your lawsuit.

Pay attention to these deadlines. The state might never contact you; however, the clock starts running on when you can file a lawsuit.

5

Negotiate with the state. After denying your claim, the state might contact you to negotiate. If you want to negotiate, you should still file a lawsuit so that you are not late. Then strategize with your lawyer about how you should approach negotiations. Discuss the following:

What your ideal settlement would be. This should be the amount you put in your Notice of Claim.

The absolute minimum you will settle for. If the state can’t meet this amount, then you should walk away from the negotiations. This is called your “walkaway” point.[10]

The strength of your case. The strength will influence how aggressive you can be in negotiations. If you have solid evidence that the state was at fault for your injuries, then you can hold out for a number close to what you put in your Notice of Claim.

6

Draft a settlement agreement. If you come to an agreement, then your lawyer should draft a settlement agreement, which you and the state representative can sign. The settlement agreement is a contract.[11] If either party breaks the contract, then the other can sue.

Part 3

Filing the Lawsuit against the State Government

1

Decide where to sue. Your first important litigation decision will be where to file your lawsuit. State courts can generally hear any type of case unless a federal court has exclusive jurisdiction (e.g., copyright violations, patent infringement, federal tax claims). However, some cases will meet the jurisdictional rules for both federal and state courts. In these instances, you will make a decision based on which courthouse is closer to you, which court has more favorable rules, which court has more favorable judges, and which courthouse has the most favorable pool of jurors.[12] To get into federal court, you must:[13]

Sue under a federal law. In the case of suing a state, this might involve federal legislation that has abrogated (gotten rid of) state sovereign immunity.

Sue under a theory of diversity jurisdiction. Here, you and the state (or state official) must be citizens of separate states and the amount in controversy must be at least $75,000. For example, if you were injured by a corrections officer working for the state of Alabama and you are a citizen of Louisiana, you may be able to sue that officer (in their individual capacity or official capacity) in federal court.

2

Draft a complaint. In the complaint, you explain how the state or state official injured you. You also need to identify who you are suing. You can sue individual state officials and the state itself. For example, you might sue “Jennifer Smith, Employee at Maryland Correctional Facilities, and the State of Maryland, as defendants.”

You also must state what you want the judge to give you, such as money damages and the amount.[14]

If you hired a lawyer, then your lawyer will draft the complaint and all other court documents.

File the complaint. After you have finished drafting the complaint, you should make several copies. Take the original and copies to the court clerk and ask to file. The clerk should stamp your copies with the filing date. You may also have to pay a filing fee, which will depend on the court.

Along with your complaint, you should submit a copy of your letter from the state rejecting your Notice of Claim.[15]

4

Serve notice on the defendants. You need to give a copy of your complaint and a “summons” to each defendant. You will get the summons from the court clerk. This document explains how much time the defendant has to respond to your lawsuit. Make sure you have the right address for delivering notice to each defendant.

Generally, you can serve notice in a variety of ways. For example, you could hire a private process server. Alternately, you could have someone 18 or older who isn’t part of the lawsuit make hand delivery.

In some courts, you can also mail a copy of the complaint to a defendant using certified mail. Ask the court clerk for acceptable methods of service.[16]

5

Receive the defendant’s answer. Each defendant will have to respond to the lawsuit. Typically, a defendant files an “answer” with the court. In this document, a defendant admits, denies, or claims insufficient knowledge to admit or deny each allegation you made in your complaint.[17]

Your lawyer will receive the copy of each defendant’s answer.

You should ask your lawyer for a copy so that you can keep up with the lawsuit.

6

Take part in discovery. Discovery gives each party a chance to collect and exchange information relevant to the case. During discovery you will gather facts, talk with witnesses, find out what the other party is going to say, and see how strong your case is. To help you during discovery, you are usually able to use the following tools:[18]

Informal discovery, which includes interviewing witnesses, gathering publicly available documents, and taking photographs.

Interrogatories, which are written questions posed to parties or witnesses. These questions are answered under oath and can be used in court.

Depositions, which are in-person interviews with parties or witnesses. They are conducted under oath and answers can be used in court.

Requests for documents, which are formal requests to the other party for documents that are not normally available to the public. Examples might include emails, text messages, and internal memos.

Subpoenas, which are court orders requiring someone to do something.

7

Defend against a motion for summary judgment. Once discovery concludes, the defendant will usually file a motion for summary judgment. In this motion, the defendant is asking the judge to decide the case before it ever gets to trial. To win, the defendant will have to show there is no genuine dispute about any material facts and that they are entitled to judgment as a matter of law. The defendant will do this by submitting evidence and affidavits.[19]

To defend against this motion, you will file a response telling the court there are genuine disputes about material facts. You will submit your own evidence and affidavits to back up your claims. If you win, the litigation will continue.

8

Discuss a settlement. Before the trial starts, you should try to settle your case with the defendant. Trials are time consuming and expensive. Settlement talks might start with settlement conferences, which will occur with the judge in his or her chambers. Both parties will get together with the judge and discuss the case and how it can be settled out of court. If an agreement cannot be reached, you may have to try other alternative dispute resolution methods.

You might consider mediation, which occurs when you and the other party hire a neutral third party to help you find common ground. A list of mediators can usually be found in your court or through the American Arbitration Association. The arbitrator will meet with both parties and discuss where deals can be made and what a reasonable settlement might look like. The mediator will not judge the legal aspects of a case and will not decide who has the better case.

If mediation fails, you might try arbitration. During arbitration, a neutral third party will act like a judge. He or she will hear testimony and analyze evidence. At the end, the third-party will issue an opinion that will state who has the best case and the award that should be given to one party. In most cases, your arbitration will be non-binding at this point and any opinion will not need to be followed.

9

File pretrial motions. Pretrial motions are filed and responded to right before trial. These motions ask the court to make a specific decision based on the evidence provided in the motion. The party that does not file the motion will have an opportunity to respond. Some common types of pretrial motions include:[20]

Motion to dismiss, which asks the court to dismiss the case because there is not enough evidence or because the facts to not amount to a crime.

Motion to suppress, which asks the court to suppress evidence at trial because it does not meet one or more rules of evidence.

Motion to change venue, which asks the court to move the trial somewhere else because of some burden (e.g., a lot of publicity and/or bias in the community).

10

Go to trial. If your case goes to trial, it will be heard by a judge or jury. If you chose to have a jury (and one is allowed), you will choose the jury during a process called "voir dire." After the jury is empaneled, you, as the plaintiff, will present your case first. You will call witnesses, ask questions of them, and submit evidence. The defendant will have an opportunity to cross-examine any witness you put on the stand.

Once you have presented your case, the defendant will have the opportunity to present their case. You will be able to cross-examine their witnesses at this point.

Once both sides have presented their case, the judge or jury will make a decision. This decision is final unless you or the other party appeal.

Part 4

Working around State Sovereign Immunity

1

Understand Section 1983 claims. A 1983 claim is technically a lawsuit that you bring against a state employee and not against the state itself. However, it may be the only way that you can sue and get compensation. You can bring a section 1983 claim against someone acting under color of law who violates your federal rights.[21] Common examples include:[22]

You can sue police officers for using excessive force against you. If you were choked or attacked by police, then you can sue to assert your Fourth Amendment right to be free of unlawful seizures.

If you are a public employee, you can sue if your boss has retaliated against you for exercising your First Amendment rights.

You can sue for the poor conditions inside a prison if you can show that the state official was “deliberately indifferent” to known risks to your health or safety.

You can sue if the state discriminated against you on the basis of race, sex, or some other protected characteristic.

2

Learn about suing state officials for an “injunction.” An injunction is a court order in which the court commands someone to not do something. For example, you could get an injunction against state police that are performing raids on your home. You could argue that the repeated raids violate your Fourth Amendment rights. If the state violates the injunction, then you can ask the court to hold the police officers in contempt.

Under the Supreme Court case Ex Parte Young (1908), you can sue a state official in federal court for violations of federal law and get an injunction.[23] The state’s sovereign immunity does not protect individual state employees from injunctions.

3

Check if you can sue a municipal government instead. Municipal governments are not immune from lawsuits in the way states are. In fact, you can sue cities, counties, and school boards.[24] Try to see if you can sue one of these departments instead of the state.

4

Look for state waivers or consent. To varying degrees, states can waive sovereign immunity and consent to be sued. Most waivers come in the form of state laws that specifically allow the state to be sued. If you are wondering whether you can sue a state, check the state law you are suing under to see if the state has opened itself up to lawsuits.

In addition, a state is deemed to consent to suit if they initiate or participate in litigation.[25]

5

Determine whether congress has gotten rid of immunity. The federal Congress has a limited ability to abrogate (destroy or get rid of) state sovereign immunity. In order to be effective, Congress must explicitly authorize (in a statute) private suits for money damages against states in order to enforce the Fourteenth Amendment (among other things, equal protection). This exception to immunity has been squeezed over the years and your ability to bring a suit under this theory may be tough.[26][27]

If you think you may have the ability to sue a state, look at the statute you are suing under to see if Congress has allowed this.